SZWAS v Minister for Immigration
[2018] FCCA 384
•26 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWAS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 384 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal failed to take into account relevant information – whether the Tribunal’s decision was illogical or irrational – whether the Tribunal was biased – invalid s.438 certificate – whether the applicant was denied procedural fairness – no basis to say the Tribunal acted on the s.438 certificate – no denial of procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Evidence Act 1995 (Cth), s.55 Migration Act 1958 (Cth), ss.418, 438, 476 |
| Cases cited: Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 |
| Applicant: | SZWAS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 204 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 8 February 2018 |
| Date of Last Submission: | 8 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms A Wong of Mills Oakley Lawyers |
ORDERS
The application made on 28 January 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 204 of 2015
| SZWAS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 28 January 2015 seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 7 January 2015, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”) and a second bundle of relevant documents filed and tendered by the Minister (“the Supplementary Court Book” – “SCB”, “RE2”).
Background
The applicant is a citizen of Pakistan (CB 13). He applied for the visa which was received by the Minister’s department on 7 June 2013 (CB 1 to CB 62). The applicant’s claims to fear harm were contained in a hand written statement attached to his protection visa application (CB 34 to CB 35).
The applicant claimed to fear harm on return to Pakistan on the basis of threats made to his father about the applicant’s welfare. The applicant claimed to have had a “very good life in Pakistan” and that he came to Australia to study, but wants to return. However, his father runs a “good” business in Pakistan and received threatening telephone calls from “some people”, who demanded money from him, otherwise they would kill the applicant. The applicant then claimed that “the people” went “directly” to his father and threatened him again. His father indicated to them that he had “nothing” due to the “strikes” in Karachi. However, “they” then said that they would kill the applicant if he were to return to Pakistan (CB 34 to CB 35).
The applicant claimed that his father went to the police but that they could not help him. The applicant also claimed that his father no longer opens the shop, and that Karachi is a “dangerous place” for businessmen as there are targeted killings, and therefore he fears harm on return to Pakistan (CB 35).
The applicant was invited to, but did not attend an interview with the delegate on 14 October 2013 (CB 72 to CB 74 and see CB 82.5). The delegate refused the application for the visa on 22 November 2013 (CB 75 to CB 89).
The applicant applied for review which was received by the Tribunal on 11 December 2013 (CB 90 to CB 95). The Tribunal (differently constituted) affirmed the delegate’s decision on 4 July 2014 (CB 98 to CB 108). Following an application for judicial review to the Federal Circuit Court, the matter was remitted to the Tribunal for reconsideration by consent ([1] at CB 122).
The applicant was invited to, and attended, a hearing before the Tribunal (differently constituted) on 24 October 2014 (CB 111 to CB 117). The differently constituted Tribunal again affirmed the delegate’s decision on 7 January 2015 (CB 121 to CB 140).
The Minister’s written submissions filed on 10 February 2017 (“the Minister’s first written submissions”) contain an accurate summary of the relevant Tribunal decision. For the purposes of this judgment I adopt the relevant paragraphs as follows ([7] – [13] of the Minister’s first written submissions):
“[7] Following the remittal, the presently constituted Tribunal (the Tribunal) wrote to the applicant on 1 September 2014 (CB 109-110), and on 22 September 2014 invited him to attend a hearing scheduled on 24 October 2014: CB 115‑117. The applicant accepted the invitation (CB 113-114) and attended the scheduled hearing: CB 115-117.
[8] On 7 January 2015, the Tribunal affirmed the delegate’s decision: CB 121-140. The Tribunal found the applicant was not a witness of truth and it had significant concerns with his evidence. It found the applicant ‘repeatedly changed his evidence’, ‘contradicted himself’ and that his own evidence did not accord with the FIR he produced in purported corroboration of his claims: CB 131, [40].
[9] The Tribunal concluded that the applicant was not telling the truth about problems he claimed he and his family had in Pakistan. Nor did it accept that the applicant and his father were robbed on 26 January 2012 or that his father received subsequent demands for money or threats to kidnap or kill the applicant: CB 133-134, [50]. It also did not accept that his father faced escalating demands for money after the applicant arrived in Australia in April 2012, paid money to extortionists, was subjected to demands for monthly payments or went into hiding. Whilst the Tribunal accepted that his father had closed his business, it did not accept this was the result of demands from extortionists: CB 134, [51].
[10] Having accepted that his father had since closed the family business, the Tribunal did not accept that the applicant would be targeted for extortion or kidnapping for ransom and did not accept that he would establish himself as a business man if he returned to Karachi. On this basis it did not accept that the applicant was a member of a particular social group of ‘businessmen’ or that he would face a real chance of harm for that reason: CB 134, [52].
[11] Given its earlier rejection of the applicant’s claims and its reliance on country information about the risks faced by Pakistanis returning from overseas, the Tribunal did not accept that the applicant faced a real chance of being targeted for extortion, kidnapped or killed because he would be perceived to have money given his time in Australia: CB 134, [53].
[12] Whilst accepting that the applicant was a member of both the Memon community (CB 135, [54]) and Mohajir community (CB 135, [55]), the Tribunal did not accept there was a real chance that he would be targeted for extortion or face harm for these reasons. It accepted some individuals were targeted for extortion but found this was because of their perceived wealth and not due to their membership of the Memon community (CB 135, [54]). It relied on its earlier rejection of his claimed problems in Pakistan, independent country information that indicated Mohajirs comprised 40 per cent of the population in Karachi and were the dominant ethnic group in that city and the absence of particular factors that would elevate the applicant’s level of risk to find he did not face a real chance of harm in Karachi as a Mohajir. The Tribunal concluded that the applicant did not have a well-founded fear of persecution for any Convention reason: CB 135, [55].
[13] On the basis of its factual findings about the applicant’s credibility, its reliance on independent country information about Mohajirs in Karachi and its rejection of his key claims on this basis, the Tribunal was also not satisfied that the applicant met the complementary protection criterion: CB 135-136, [56]-[57].”
Before the Court
The applicant appeared before the Court on 19 February 2015 and 4 November 2015. Various orders were made including that the applicant be given the opportunity to file any amended application, further evidence by way of affidavit and written submissions. The applicant filed no further documents in this regard. As mentioned above, the Minister filed written submissions on 10 February 2017.
By an order made by a Registrar of the Court on 4 November 2015, the matter was set down for final hearing on 17 February 2017. Prior to the final hearing, the matter was adjourned pending the outcome of the Minister’s application for special leave to appeal the decision of the Full Federal Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (“Singh”). That application was refused by the High Court on 12 May 2017.
Orders were made by consent on 17 February 2017 which, in light of the outcome of the Minister’s application for special leave to appeal, gave the applicant the opportunity to file any amended application, further evidence by way of affidavit and written submissions. The applicant filed no further documents in this regard. The Minister filed further written submissions on 29 January 2018 (“the Minister’s further written submissions”).
The matter was subsequently re-listed for hearing on 8 February 2018. At the hearing, the applicant appeared in person with the assistance of an interpreter in the Urdu language. The Minister was represented by a solicitor.
The Application before the Court
The grounds of the application are in the following terms:
“Ground 1
The Tribunal made a procedural error by not taking into account information relevant to the applicant’s particular circumstances.
Particulars
The Applicant belongs to Mohajir ethnic group. His father has a lucrative business of providing medical supplies in Karachi. The applicant states that there is continuing threat to his father and family from terrorist groups and extortionists demanding ransom. These groups have continually harassed, threatened to kill his father and members of the Applicant’s family. The Applicant states that his ethnic group is not considered to be Pakistanis because they crossed over from India to Pakistan during the time of Partition. The applicant says their ethnicity affected how the law enforcement authorities dealt with their issues as well as becoming a greater target of these criminal groups. He states there are links between terror groups and political parties and law enforcement agencies are reluctant to enforce the law against them. The general perception in Pakistan of the Moharjirs as non-Pakistanis have made their situation worse. The Applicant produced before the Tribunal a detailed account of instances where his family underwent terror in the hands of such groups and continue to do so. However the Tribunal did not accept that the applicant’s father was a target of the extortionists or that he was ever threatened in that respect or that there is a greater chance that he would be targeted for being a member of the Mohajir community.
Ground 2
The failure to understand or take into account the applicant’s claims that his life was at risk and continue to be risky manifest ignorance and lack of knowledge of the realities in life in Pakistan.
Particulars
The Tribunal failed to understand and put the applicant in the contect that existed in his home country of Pakistan. For example, the Applicant produced before the Tribunal evidence of killings and incidence of violence committed by extortionists as well as evidence relating to clashes between different ethnic groups in Karachi and mistreatment by law enforcement authorities of the Mohajir people. The Applicant attempted to show to the Tribunal how the cumulative effect of these still posed a continuing threat to the Applicant’s life and the fear held by his father for his only son.
Ground 3
The Tribunal’s conclusion that the applicant did not have a
well-founded fear of persecution in Pakistan was illogical or irrational, manifested a misunderstanding or misconstruction of the Convention test or arose out of a failure to take relevant information into account.
Particulars
The Tribunal found that there is not a real chance that the applicant will suffer serious harm in Pakistan by simply rejecting evidence brought by the Applicant as having never having occurred.
Ground 4
The applicant was not afforded natural justice.
Particulars
The applicant believes that he was not afforded a fair hearin., The Honourable Member’s judgment was clouded by her own pre-conceived beliefs whether the applicant was a credible witness or not or whether the applicant’s evidence was genuine or mere fabrication, notions as to what constituted ‘fear’. In doing so, the Honourable Member allowed his view to prevail over the applicant, taking the power vested in him to come to conclusions which are detrimental to the rights of the applicant. The applicant feels unheard, and justice unavailable.”
[Errors in the original.]
Consideration
At the hearing, the applicant was given the opportunity to make submissions in respect of each of his grounds. These are addressed below.
Ground one asserts the Tribunal failed to take into account information relevant to the applicant’s claims. The particulars set out a narrative style “summary” of the applicant’s claims to protection, as they were ultimately before the Tribunal.
Before the Court, the applicant stated that the Tribunal did “not go into the (sic) depth” in considering his claims. Further, that his “claims were not dealt with properly”. The applicant also stated that he still feared harm in his home country, and the Tribunal should have accepted his claims.
Contrary to the applicant’s submission, the Tribunal set out his claims in detail ([4] at CB 122 to CB 123 to [16] at CB 125). Further, the Tribunal also set out its discussion with the applicant at the hearing, about his claims and his evidence in considerable detail ([17] at CB 125 to CB 126 to [39] at CB 130 to CB 131). On the evidence, the Tribunal put its numerous concerns with the applicant’s claims and evidence to him at the hearing, and gave him the opportunity to respond.
There is nothing in the evidence before the Court to indicate that the Tribunal misunderstood or mischaracterised the applicant’s claims. The applicant’s submission that the Tribunal did not consider his claims “properly” or “in depth” must, on the evidence, be rejected.
It is clear, on any plain reading of the Tribunal’s decision record, and in light of the other material in the Court Book, that the applicant’s complaint is that the Tribunal did not accept the truth of his claims, or that his claims satisfied the requirements for the grant of the protection visa.
The Tribunal was not under any obligation to uncritically accept the applicant’s claims (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs[1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 at 451 per Beaumont J and Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 at 596 per Kirby J). The Tribunal gave reasons for its disbelief of the applicant’s evidence. It made findings which were reasonably open to it, and which were logically probative of the material before it. In the circumstances, the applicant’s ground seeks impermissible merits review. In all, ground one is not made out.
Ground two asserts that the Tribunal failed to understand or to take into account that the applicant’s “life was at risk” in Pakistan and would continue to be so. Further, that the Tribunal was ignorant and lacked knowledge.
The ground asserts that the applicant provided evidence to the Tribunal about the killings and violence “committed by extortionists”. Further, that the applicant had provided evidence of “clashes between different ethnic groups” and the authority’s mistreatment of a minority group to which he belonged.
Ground three asserts that the Tribunal’s decision was “illogical or irrational”. The particulars “explain” the ground in terms similar to ground two. That is, the Tribunal’s decision was illogical or irrational because the Tribunal failed to understand the situation in Pakistan and, as the applicant also says in ground two, failed to “put the applicant” in that context.
Before the Court, the applicant submitted that the Tribunal did not take into account “all” of the circumstances. He stated that “atrocities” still occur in Pakistan, as is “shown on the television every day”.
Again, in the circumstances, the applicant’s grounds two and three seek impermissible merits review. That is, in essence, the applicant’s grounds two and three are a disagreement with the Tribunal’s findings of fact.
First, the Tribunal found that the applicant was not “telling the truth about the problems he claim[ed] he and his family have had in Pakistan” ([50] at CB 133).
This conclusion was supported by a large number of factual findings made by the Tribunal. All of these were reasonably open to the Tribunal on what was before it. The Tribunal identified specific deficiencies and inconsistencies in the applicant’s evidence (for example see [12] at CB 124, [15] at CB 125 and then from [17] at CB 125 to CB 126 to [39] at CB 130 to CB 131). The Tribunal found that he had repeatedly changed and contradicted his own evidence. In particular, some of his own oral evidence did not accord with the one document (the First Information Report – “FIR”) that he had provided in corroboration of his claims. On the evidence, this again was reasonably open to the Tribunal.
Given the state of the applicant’s evidence, the Tribunal did not accept he had been truthful. It rejected his claims on this basis.
Specifically in relation to the FIR, the Tribunal found that in light of the Department of Foreign Affairs and Trade (“DFAT”) advice about documentary fraud, and its prevalence in Pakistan, it gave “greater weight” to the problems it had with his evidence ([50] at CB 133 to CB 134).
As the Minister submits, in the circumstances, the Tribunal was entitled to accept, reject or assign such weight to the applicant’s evidence as it considered appropriate. The Tribunal gave cogent reasons for its various conclusions on the assessment of the evidence. Further, as the Minister submits ([19] of the Minister’s first written submissions):
“The Tribunal was entitled to accept, reject or give such weight to the evidence proffered as it considered appropriate in all the circumstances.[1] It is a matter solely for the Tribunal to identify such material as it finds relevant to its reasoning and to give that material appropriate weight.[2] It was also open to the Tribunal to have regard to the materials that formed part of the review process prior to the impugned decision. The Tribunal’s conclusion that the applicant was not a witness of truth was a finding of fact par excellence,[3] and the Court cannot review the merits of the Tribunal’s decision.[4] The applicant’s criticism of the Tribunal’s reasoning is one of emphatic disagreement,[5] but it neither demonstrates irrationality,[6] nor does it go further than seeking impermissible merits review.”
[Footnotes renumbered.]
[1] Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]
[2] Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]
[3] Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]
[4] [Footnote omitted.]
[5] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 198 ALR 59, [2003] HCA 30 at [5] per Gleeson CJ, quoted with approval by an unanimous Court in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, [2010] HCA 48 at [34].
[6] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16 at [130]-[131] per Crennan and Bell JJ; see also: Wigney J in SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [60]-[65] and Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, [2016] FCA 516 at [52]-[56] (referred to with approval by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [60]).
In all, grounds two and three are not made out. There is no illogicality or irrationality in the Tribunal’s decision simply because the Tribunal was not satisfied of the truth of the applicant’s claims. Further, that the applicant did not satisfy the criteria for a protection visa.
Ground four asserts that “the applicant was not afforded natural justice”. Before the Court, the applicant explained the ground and the “particulars” to it, by asserting that the Tribunal’s decision was biased. That is, the Tribunal applied its “own preconceived beliefs” as to whether the applicant was credible. The test for bias is well settled (see Minister for Immigration v Jia Legeng[2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”), Minister for Immigration and Citizenship v SZJSS & Ors[2010] HCA 48; (2010) 243 CLR 164 and SBBS v Minister for Immigration& Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 (“SBBS”)).
There is no evidence before the Court to support the allegation of bias. The applicant’s complaint in the circumstances cannot be seen as anything more than his attempt to express his disagreement with the Tribunal’s findings and conclusion.
As set out above, an allegation of bias is serious and must be distinctly made and clearly proved (Jia legeng at [69] and SBBS at [43]).
The fact that the Tribunal did not believe, and did not accept, the applicant’s claims, is not sufficient to say that a proper allegation (as opposed to a mere assertion) of bias has been made, let alone that it is made out. In all, ground four is not made out.
Before the Court, the Minister raised an additional issue. On the Minister’s department’s file was a certificate dated 4 September 2014 and said to be issued pursuant to s.438(1)(a) of the Act (“the s.438 certificate”), covering 3 folios on that file.
In MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 (“MZAFZ”), the Federal Court, on appeal from this Court, found that the applicant in that case was denied procedural fairness because the Tribunal did not disclose the existence of a similar certificate issued pursuant to s.438(1)(a) of the Act. The Federal Court also found that the Tribunal failed to give the applicant in that case, the opportunity to make submissions on the validity of the s.438 certificate, and its proposed use.
In short, for current purposes, the relevant Tribunal decision in MZAFZ was affected by jurisdictional error because the applicant was denied procedural fairness in the conduct of the review.
I admitted the s.438 certificate, and the documents which it covered, into evidence pursuant to s.55 the Evidence Act 1995 (Cth) on the basis of relevance. The issue raised by the Minister’s reference to the s.438 certificate is whether the applicant was denied procedural fairness by the Tribunal (Minister for Immigration and Border Protection vCQZ15 [2017] FCAFC 194 (“CQZ15”) at [62] – [65], Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 (“BJN16”)
at [62] – [69] and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 (“BEG15”) at [30]).
A copy of the s.438 certificate and the covered folios were provided to the applicant at the hearing. I note that as mentioned above, the Minister filed further written submissions on 29 January 2018. The applicant would have been on notice, from that time, of the s.438 certificate issue.
As set out above, in the current case, the applicant’s application for review had initially been considered by a differently constituted Tribunal. That Tribunal decision was the subject of orders made by consent by this Court, remitting the matter to the Tribunal for reconsideration.
The s.438 certificate and the covered folios were on the Minister’s department’s file. There is no dispute that the s.438 certificate and the documents were given to the Tribunal pursuant to s.418(3) of the Act as part of the Minister’s department’s file (see [2] at CB 122 and [3] of the Minister’s further written submissions).
As set out above, in MZAFZ (and see also Singh), the Federal Court set out the relevant principles to be applied in circumstances where an applicant had been denied the opportunity to comment on the s.438 certificate and its validity. In that light, in the current case, I note the s.438 certificate is invalid for the reasons set out in MZAFZ at [37].
However, in the current case, I accept the Minister’s submission that the documents, given what appears on their face, could not have been of any material relevance to the Tribunal’s review.
The three documents were each departmental emails or records. The first folio (folio 89), was an email to the Minister’s solicitors with instructions to concede that the earlier Tribunal decision was affected by jurisdictional error.
The second folio (folio 90), was an internal departmental record noting that “consent orders” were made by the Court on 27 August 2014, remitting the applicant’s application for review to the Tribunal for reconsideration.
The third folio (folio 91), was an “internal” departmental email noting that the previous proceedings were resolved on 27 August 2014 by way of the Minister’s withdrawal from the proceedings.
In the current case, the s.438 certificate is invalid. There is no reference in the Tribunal’s decision record to the certificate, or to the covered folios. In BJN16 the Full Federal Court stated that (BJN16 at [62] and [69] and see also CQZ15 at [29]):
“[62] The documents which the Minister sought to tender before the FCC had been provided to the Tribunal by the Secretary prior to the hearing of BJN16 ’s case. They were, therefore, documents which the Secretary considered to be relevant to the review: see s 418. It may be assumed, as did Beach J in MZAFZ, in the absence of evidence to the contrary, that the Tribunal had had regard to the documents when coming to its decision. As a general rule, such material is treated as being relevant for the purposes of judicial review: see Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540; [1989] FCA 202 at pp 6-9 (Lockhart J).
…
[69] Even if, as BJN16 submitted, there was a relevant analytical difference between breaches of procedural fairness obligations and other kinds of jurisdictional error, the material remains relevant to relief. In Ex parte Aala at 109 [59], Gaudron and Gummow JJ identified the rationale for procedural fairness in the exercise of statutory power as ‘the concern ... with observance of fair decision-making procedures rather than with the character of the decision’ and stated that this rationale differed from ‘that which generally underpins the doctrine of excess of power or jurisdiction’. Their Honours nonetheless recognised that relief might not be secured for ‘trivial’ breaches on the basis that ‘where the obligation to afford procedural fairness exists, its precise or practical content’ is to be determined by reference to the controlling legal framework and the particular circumstances of the case (at 109 [60]). Although expressed from a different analytical perspective, the same essential concern informs the statements by Gageler and Gordon JJ in WZARH at 343 [60], to the effect that, where there is a denial of procedural fairness because of the denial of a fair opportunity to be heard, ‘the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.’”
The folios covered by the s.438 certificate all relate to the disposition of the applicant’s judicial review proceedings, in relation to a previous Tribunal consideration. Having regard to the documents, I accept the Minister’s submission that there is no basis to say that the Tribunal “acted on” the certificate (MZAFZ at [40] and see [5] – [6] of the Minister’s further written submissions). There is nothing to indicate that the Tribunal considered these documents as material to the conduct of the review of the decision before it (CQZ15 at [65]). It is reasonable to infer that the Tribunal did not refer to, or act on, the s.438 certificate or the documents, because the content of the documents could have had no impact on the task it was jurisdictionally required to exercise.
Importantly, there was nothing in the documents that was adverse to the applicant. In the circumstances, the applicant already knew that his matter had been remitted to the Tribunal. In context, the applicant was not denied any opportunity to advance his case by the existence of the documents or the Tribunal not having told him about the s.438 certificate and the documents it covered (AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 at [85] and [91]). In short, no “practical injustice” is demonstrated in the circumstances (VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 at [30] citing Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, VEAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678; (2003) 132 FCR 291 at [48], VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 363 at [50] – [52] upheld on appeal in VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 32 at [42]).
Conclusion
No jurisdictional error is revealed in the Tribunal’s decision. The application to the Court should be dismissed. I will make the appropriate order.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 26 February 2018
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